Howell v Nominal Defendant

[1962] HCA 4

High Court of Australia|1962-07-01|Before: Owen JJ, McTiernan J, Walsh J, Collins JJ, Macfarlan J, Kitto J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1962-07-01

Before

Owen JJ, McTiernan J, Walsh J, Collins JJ, Macfarlan J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

High Court of Australia McTiernan, Kitto, Taylor, Windeyer and Owen JJ. Howell v Nominal Defendant [1962] HCA 4

[2]

This action is brought with the aid of s. 30 (2) (a) of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 N.S.W.. It is an action to recover damages for personal injury suffered by the appellant in consequence of something like a head-on collision between a motor car he was driving and another car which a man named Black was driving. The action is not, of course, against Black: he is not charged in the action with negligence. The allegation of negligence is made against the owner or driver of a motor car which, as the appellant alleges, struck his motor car from behind and thereby forced it off its course against Black's car. The appellant sues the respondent on the footing that the identity of the overtaking car could not, after due inquiry and search, be established and that the respondent is liable by the Act to pay the appellant damages for the injury he sustained out of moneys provided by the authorized insurers in accordance with Div. 4. The particular feature of the case is that the evidence involves two motor cars in the allegation of negligence, and as to one of them, that driven by Burns, its identity was established before action: and as to the other, described as the grey car, it was clearly open to the jury to find that its identity was not established, after due inquiry and search.

[18]

I do not understand the appellant to deny any of these propositions expressly. But it is said that where a plaintiff has been injured by the negligent driving of one of two motor vehicles, both or one of which is known, and he is unable to specify which, he is in a position to assert that his injuries have been caused by or have arisen out of the use of an unidentified motor vehicle. Such a case may, of course, arise where a plaintiff, having been injured by the negligent management of one of two such vehicles, is fully aware of what are said to be the circumstances of the case and, nevertheless, is, by reason of conflicting statements as to the cause of his injuries, unable to specify where liability rests. Or, he may not be in a position successfully to assert a claim against either owner or driver simply because of lack of proof as to which vehicle has caused his injuries. But to my mind only a curious and unjustified transmutation of what I conceive to be the plain meaning of the sub-section could enable him in either case to say that his injuries had been caused by or had arisen out of the use of a motor vehicle the identity of which could not be established. What the section postulates is the existence of a motor vehicle the negligent management of which can be shown to have caused injury or death and, thereupon, inability on the part of the plaintiff to establish its identity. These are the critical matters which must be proved by a plaintiff in order that he may succeed in his claim against the nominal defendant. But the sub-section does not contemplate, or provide for, the difficulty with which a plaintiff is confronted when, having been injured by one of two motor vehicles, both or one of which is known, he is unable, by reason of lack of proof, to assert a claim successfully against either. That this is so is, I think, apparent from the terms of the sub-section itself for the claim which an injured person may enforce against the nominal defendant is the claim which he could have enforced against the owner or driver of the offending vehicle if its identity could have been established. What claim then, one may ask, does a plaintiff seek to enforce against the nominal defendant where he is unable to specify whether his injuries have resulted from the negligence of either A. or B.? It is not some abstract claim; it must be either the claim, if any, which he had in respect of the negligent management of A's car or the like claim which he had in relation to the management of B's car. And in neither case is the claim one which the plaintiff had against the owner or driver of a motor vehicle the identity of which could not be established.

[21]

It is obvious that once the identity of a motor car has been established the identity of the owner will be established as a matter of course and no difficulty will arise in ascertaining whether the vehicle is insured or uninsured. In the former case the scheme of the Act is that liability will fall, either directly or indirectly, upon the authorized insurer; in the latter case it will fall upon the nominal defendant. But what is to happen if the identity of the motor vehicle cannot be established after due inquiry and search? It is, of course, this very circumstance with which sub-s. 2 (a) is concerned and with this in mind it is convenient to return to the language of the section. The first thing, of course, which must be noticed is that it creates a new cause of action. But it is not a cause of action "which is independently complete" subject only to a "procedural condition precedent" (per Jordan C.J. in Blandford v. Fox [2] ). It is a cause of action given to an injured person against the nominal defendant and in order to succeed the plaintiff must prove that his injuries resulted from the negligent management of a motor vehicle the identity of which after due inquiry and search he could not establish. It is a cause of action given to the injured person as a "person who could have enforced a claim for damages against the owner or driver of the motor vehicle" if he could have identified the vehicle, and his right against the nominal defendant is the right to enforce against him "the claim which he could have enforced against the owner or driver of the motor vehicle" if he had been able to identify the vehicle. Consideration of these provisions led Jordan C.J. in Blandford v. Fox [1] to observe that: "The conditions of the coming into existence of the new cause of action against the nominal defendant are - (1) there must have been death or bodily injury arising out of the use of a motor vehicle, (2) this must have occurred in such circumstances that some person could have enforced a claim for damages against the owner or driver in respect of the death or injury, (3) there must have been due inquiry and search for the purpose of identifying the motor vehicle, and (4) it must have been impossible thereby to establish its identity" [1] . With these observations I respectfully agree and make the obvious addition that in order to succeed against the nominal defendant a plaintiff must satisfy the court or a jury on each of these matters. Accordingly, in the present case, it was not open to the jury to find a verdict against the nominal defendant based upon Burns' alleged negligence for once the conclusion was reached that his negligence was the cause of the plaintiff's injuries it was obvious that the latter had failed to prove that his injuries had been caused by or had arisen out of the use of a motor vehicle the identity of which could not be established.

[29]

It appears from the evidence that the plaintiff's injuries were sustained when a car which he was driving along a public street veered across the road on to its incorrect side and there came into collision with a car being driven in the opposite direction by a man named Black. No suggestion was made that Black was guilty of any negligence in the management of his car. The case sought to be made on behalf of the plaintiff was that the course taken by his car across the road was due to the fact that another car following closely behind him or seeking to overtake him had struck the right-hand rear portion of his car causing it to get out of control, and that this impact was due to the negligence of the driver of this following or overtaking car. There was evidence upon which these findings could have been made. There was evidence also on which it could have been found that there were two cars being driven behind the plaintiff's car and in the same direction. One of them, as the plaintiff knew before he commenced this action, was being driven by a man named Burns; the other, which was described as a grey car, continued on its way and its identity and that of its owner or driver could not be and never was ascertained by the plaintiff. The plaintiff's case was that at the date of the issue of the writ he was, after making due inquiry and search, unable to say whether the car which had struck his car was the one driven by Burns or the grey car and evidence to this effect was given. In these circumstances it was contended that he was entitled to maintain an action against the nominal defendant under s. 30 (2) (a) of the Motor Vehicles (Third Party) Insurance Act, 1942-1951 N.S.W.. If this submission is correct, it seems to me to follow that it would not have been relevant at the trial to inquire which of the two cars it was that struck the rear of the plaintiff's car. His cause of action was complete when he issued his writ and if, at some later date, it appeared that it was Burns' car that had struck his car, the nominal defendant would not have been thereby relieved of liability although he would then have been in a position, under s. 32 (1) of the Act, to recover from Burns the amount of any judgment recovered against him by the plaintiff. It is necessary then to turn to s. 30 (2) (a) and consider its meaning and effect. The sub-section is in the following terms: "30. (2) (a) Where the death of or bodily injury to any person is caused by or arises out of the use of a motor vehicle upon a public street but the identity of the motor vehicle cannot after due inquiry and search be established, any person who could have enforced a claim for damages against the owner or driver of the motor vehicle in respect of the death or bodily injury may enforce against the nominal defendant the claim which he could have enforced against the owner or driver of the motor vehicle." The general purpose of the provision is clear enough. It is to provide a person who has suffered bodily injury by the negligent use of a motor vehicle upon a public street with a nominal defendant whom he may sue and from whom he may recover damages in a case in which he is unable, after making due inquiry and search, to discover the identity of the tortfeasor against whom he could have maintained an action had he been able to identify him. The sub-section speaks of inability to establish the identity of the motor vehicle the use of which has caused the bodily injury but it proceeds upon the basis that inability to identify the offending car means that the identity of the driver or owner of it cannot be established so that, but for the sub-section, the injured person would be left without remedy because he cannot find the person who is liable to be sued. In construing the sub-section I begin with the proposition, which is indisputable, that in determining whether or not a person has a right of action against another, the relevant time to which regard must be had is the moment preceding the issue of the writ. It is then that the cause of action must be complete. If it is then complete, it is irrelevant, except in special circumstances, as where a plea puis darrein continuance is raised, to point to some event occurring after the commencement of the action which if it had occurred before the issue of the writ would have prevented a cause of action arising. In an action based upon the sub-section the plaintiff must prove that he has suffered bodily injury caused by or arising out of the use of a motor vehicle upon a public street. He must also prove that he has made due inquiry and search for that motor vehicle but has been unable to establish its identity. I should perhaps add here that it is the plaintiff's inability to establish the identity of the motor vehicle to which the sub-section refers (Chadwick v. Bridge [1] ; Cavanagh v. Nominal Defendant [2] ). Finally, he must prove that if he had been able to establish its identity and thereby ascertain the identity of its owner or driver, he could have enforced a claim for damages against that owner or driver. This he may do by showing that the motor vehicle by the use of which his injuries were caused was being negligently used.

[31]

Applying these considerations to the present case, there was evidence which would support findings in favour of the plaintiff on all these issues. If each of these essential ingredients was found to exist, the case seems to me to fall fairly within the words of the sub-section. It would equally fall within them if the fact had been that the plaintiff had, before the writ issued, known not only the identity of Burns' car but that of the grey car provided he proved that, at that time, he was unable to establish which of the two cars had struck his car. A failure to establish the identity of a motor vehicle which causes bodily injury to a person may arise in several ways. It may arise because the circumstances are such that, although it is clear that the use of a motor vehicle caused the bodily injuries, the identity of the particular car cannot be discovered, as, for example, where no one is able to take its number or otherwise provide the plaintiff with material which enables it to be traced. This is of course the common type of case in which the sub-section is available. But a failure to identify a motor vehicle which has caused bodily injuries equally arises if, after due inquiry and search, the plaintiff cannot establish which one of several cars, the identity of each of which is at all times known to him, in fact caused the injuries. A person cannot establish the identity of his assailant if he says, and the fact is, that "A and B were the only persons standing behind me. Each of them carried an axe and I was hit on the back of the head with an axe but I cannot say which of them struck me". It is true that if he sued A for assault he would fail, equally so if he sued B. If, however, he had been able to identify which of the two had attacked him he could have maintained an action against the wrongdoer. Section 30 (2) (a) is, of course, not dealing with axes but with motor vehicles but one of its purposes, as it seems to me, is to ensure that an injured person shall not be left without remedy merely because after due inquiry and search he cannot establish whether it was A or B who negligently or, for that matter, intentionally hit him with a motor car. I should here add that during the trial it emerged that, prior to the commencement of the present action, the plaintiff had sued Burns but had lost the case, whether because he failed to establish that it was Burns' car that had hit his car or for some other reason did not appear. No question of estoppel was raised and the learned trial judge rightly told the jury to disregard the fact that the action against Burns had failed. The only possible relevance that this piece of evidence could have had would be if it had tended to disprove the plaintiff's claim that, at the date of the writ in this action, he was unable to establish the identity of the car which had run into the rear of his car and no attempt was made to use it for this purpose.